Citation Nr: 1035657
Decision Date: 09/21/10 Archive Date: 09/28/10
DOCKET NO. 07-25 443 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to service connection for peripheral neuropathy,
bilateral upper extremities, to include as due to exposure to
herbicides and as secondary to service-connected diabetes
mellitus (referred to hereinafter as "diabetes").
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
S. Flot, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1968 to March 1970.
He served in the Republic of Vietnam (RVN) from August 1968 to
August 1969.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from an October 2006 rating decision from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Jackson, Mississippi. Service connection for peripheral
neuropathy, bilateral upper extremities; idiosyncratic peripheral
neuropathy, bilateral lower extremities; soft tissue sarcoma;
bone infarct, left lower extremity; and porphyria cutanea was
denied in this decision. An earlier effective date of May 8,
2001, was granted for service-connected diabetes. The Veteran
perfected an appeal only as to the denials of service connection
for peripheral neuropathy, bilateral upper extremities and
idiosyncratic peripheral neuropathy, bilateral lower extremities.
In December 2007, a Decision Review Officer (DRO) hearing was
convened regarding this matter. A transcript of the hearing has
been associated with the claims file.
Service connection for peripheral neuropathy of the left lower
extremity and for peripheral neuropathy of the right lower
extremity was granted in a February 2008 RO rating decision. The
benefit sought with respect to idiosyncratic peripheral
neuropathy, bilateral lower extremities therefore has been
granted in full. Accordingly, the only issue that remains in
appellate status concerns service connection for peripheral
neuropathy, bilateral upper extremities.
FINDINGS OF FACT
1. The Veteran does not have peripheral neuropathy in his upper
extremities.
2. Even if a current disability were to be shown, any current
upper extremity peripheral neuropathy is not related either
directly or presumptively to service nor is it proximately caused
or aggravated by his service-connected diabetes.
CONCLUSION OF LAW
The criteria for entitlement to service connection for peripheral
neuropathy, bilateral upper extremities, have not been met.
38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.102, 3.303, 3.307, 3.309, 3.310 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and a duty to assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a).
Upon receipt of a complete or substantially complete application
for benefits, VA is required to notify the claimant and his or
her representative, if any, of any information, and any medical
or lay evidence, that is necessary to substantiate the claim.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper notice from VA must
inform the claimant of any information and evidence not of record
(1) that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. This notice must be provided prior to an initial
unfavorable decision on a claim by the agency of original
jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed.
Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United
States Court of Appeals for Veterans Claims (Court) held that
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) also require VA to
provide the claimant with notice of what information and evidence
not previously provided, if any, will assist in substantiating,
or is necessary to substantiate, each of the elements of the
claim, including notice of what is required to establish service
connection and that a disability rating and an effective date for
the award of benefits will be assigned if service connection is
awarded.
A notification letter was sent to the Veteran in June 2006, prior
to the initial AOJ decision regarding this matter. This letter
explained the evidence required to establish service connection,
the evidence not of record necessary to substantiate his claim
for service connection, the Veteran's and VA's respective duties
for obtaining evidence, and how VA determines disability ratings
and effective dates if service connection is awarded. As such,
it fully addressed all notice elements. The Board therefore
finds that VA's duty to notify has been satisfied.
VA also has a duty to assist the Veteran in the development of
the claim. This duty includes assisting the Veteran in the
procurement of service treatment records and other pertinent
treatment records as well as providing a medical examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
VA has obtained the Veteran's service treatment records, VA
treatment records, and identified private treatment records. The
Veteran submitted additional private treatment records.
Medical examinations were afforded to the Veteran with respect to
his claim in October 2006 and June 2008. A medical opinion also
was obtained in January 2008. The Board finds that these medical
examinations and medical opinion fulfilled VA's duty to assist
and that no further medical examination and/or medical opinion is
necessary in this case. The Veteran's representative points out
in his July 2010 Informal Hearing Presentation that the October
2006 and June 2008 medical examinations did not include a review
of the claims file. However, the mere fact that an examiner did
not review the claims file does not render an examination
inadequate, particularly where the content of the examination
shows that the examiner was familiar with the Veteran's medical
history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304
(2008); D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). The
examination reports reveal that the Veteran's VA treatment
records were reviewed by each examiner. Additionally, they
reveal that each examiner received a detailed medical history
report directly from the Veteran. The Veteran's representative
also points out in his July 2010 Informal Hearing Presentation
that the January 2008 medical opinion was rendered without the
benefit of a physical examination of the Veteran and asserts that
it did not include consideration of the Veteran's own statements
as to his symptomatology and when it commenced. Yet the VA
examiner who rendered the medical opinion undertook an exhaustive
review of the claims file. Given that such review included
perusal of the report from the Veteran's October 2006 medical
examination 15 months prior, which included a physical
examination, another physical examination was unnecessary. The
review also included perusal of lay statements from the Veteran
and the medical history he self-reported to private physicians,
VA physicians, and VA examiners alike. As such, the assertion
that his statements were not considered is unsupported by the
record.
Significantly, neither the Veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence necessary for a fair adjudication of
the claim that has not been obtained. Hence, the Board finds
that all necessary development has been accomplished, and no
further action is required to fulfill VA's duty to assist. Smith
v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed.
Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see
also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore,
appellate review may proceed without prejudice to the Veteran.
See Bernard v. Brown, 4 Vet. App. 384 (1993).
II. Service Connection
Service connection may be established in several ways, including
on a direct basis, presumptive basis, or secondary basis.
Direct service connection means that the facts establish that a
current disability resulted from an injury or disease incurred or
aggravated in active military service. 38 U.S.C.A. § 1110; 38
C.F.R. § 3.303(a). To establish direct service connection for a
disability, there generally must be (1) medical evidence of a
current disability, (2) medical evidence, or in certain
circumstances lay testimony, of in-service incurrence or
aggravation of an injury or disease, and (3) medical evidence of
a nexus between the current disability and the in-service disease
or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).
Direct service connection also may be established if the evidence
of record reveals that the Veteran currently has a disability
that was chronic in service or, if not chronic, that was seen in
service with continuity of symptomatology demonstrated
thereafter. Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage
v. Gober, 10 Vet. App. 488, 495-97 (1997). Continuity of
symptomatology may be established if a Veteran can demonstrate
(1) the condition was "noted" during service; (2) evidence of
post-service continuity of the same symptomatology; and (3)
medical, or in certain circumstances, lay evidence of a nexus
between the present disability and the post-service
symptomatology. Savage, 10 Vet. App. at 495-96.
Direct service connection further may be established for any
disease diagnosed after discharge when all the evidence
establishes that the disease was incurred in service. 38 C.F.R.
§ 3.303(d).
Presumptive service connection means that a disease will be
considered to have been incurred in or aggravated by service even
though there is no evidence of such disease during service.
38 C.F.R. §§ 3.307(a); 3.309. Service connection is presumed
where a Veteran served 90 days or more and manifested a chronic
disease, such as an organic disease of the nervous system, to a
compensable degree within one year from the date of separation
from service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a). However, this
presumption may be rebutted by affirmative evidence to the
contrary. 38 C.F.R. §§ 3.307(d), 3.309(a).
Service connection also is presumed where a Veteran (1) was
exposed to an herbicide agent during service and (2) manifests
either (a) chloracne, porphyria cutanea tarda, or acute and
subacute peripheral neuropathy to a degree of 10 percent or more
within one year of the last date on which the Veteran was exposed
to the herbicide agent or (b) AL amyloidosis, diabetes mellitus,
Hodgkin's disease, chronic lymphatic leukemia, multiple myeloma,
non-Hodgkin's lymphoma, prostate cancer, respiratory cancers, or
certain soft tissue sarcomas at any time after service.
38 C.F.R. §§ 3.307(a)(6), 3.309(e). A Veteran who manifests one
of these disorders is presumed to have been exposed to an
herbicide agent if he served in the RVN between January 9, 1962,
and May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii); McCartt v. West,
12 Vet. App. 164 (1999).
Finally, secondary service connection means that the evidence
shows that a current non-service-connected disability is
proximately due to or the result of a service-connected disease
or injury. 38 C.F.R. § 3.310(a). Establishing service
connection on a secondary basis requires showing (1) that a
current disability exists and (2) that the current disability was
either (a) proximately caused by or (b) proximately aggravated by
a service-connected disability. Allen v. Brown, 7 Vet. App. 439,
448 (1995) (en banc).
Where the determinative issue involves medical causation or a
medical diagnosis, competent medical evidence is required.
Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). The Board must assess the
probative value of all the evidence, including medical evidence.
The weight and credibility of evidence may be discounted "in the
light of its own inherent characteristics and its relationship to
other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481
(Fed. Cir. 1997). However, the Board must account for evidence
which it finds to be persuasive or unpersuasive and provide
reasons for rejecting any material evidence favorable to the
claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994),
Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski,
2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App.
164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The Secretary shall give the benefit of the doubt to the Veteran
when there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of a
matter. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also
Gilbert, 1 Vet. App. at 49. As such, the Veteran prevails when
the evidence supports his claim or is in relative equipoise but
does not prevail when the preponderance of the evidence is
against the claim. Id.
Service treatment records do not reveal that the Veteran
complained of, received treatment for, or was diagnosed with
peripheral neuropathy of his upper extremities. They were given
a normal clinical evaluation upon his separation.
Subsequent to service, the Veteran sought healthcare treatment
from Internal Medical Associates (IMA). A treatment record from
this facility dated in November 2000 reflects that the Veteran's
right and left upper extremities had normal strength. A March
2005 treatment record reflects that he complained of his arms
feeling weak after moving furniture. However, no proximal muscle
atrophy or muscle weakness was noted in his upper extremities.
The Veteran also sought healthcare treatment from VA subsequent
to service. A September 2005 treatment record documents that his
motor strength was 5/5, his reflexes were 2+, and his sensation
was intact. Treatment records dated in November 2005 and May
2006 similarly document that his strength was 5/5, his deep
tendon reflexes were 2+/4+, and he had full sensation to light
touch.
Treatment records dated in December 2005 and September 2006 from
IMA reflect that the Veteran's motor strength was normal. These
records also reflect that the Veteran was prescribed
amitriptyline.
The Veteran was afforded a VA peripheral neuropathy examination
in October 2006. He reported onset of his diabetes in 2000 and
noted that he had experienced numbness and tingling in his hands
for approximately 20 years. He also reported weakness in his
hands, which caused him to drop things occasionally. He further
reported that his private healthcare provider did not treat such
symptoms, but informed him that they were due to his diabetes.
Physical and electrophysiological examination, however, failed to
show evidence of polyneuropathy in the Veteran's upper
extremities. The VA examiner noted that diabetic peripheral
neuropathy develops after a diagnosis of diabetes and generally
in cases where the blood sugar is poorly controlled. As the
Veteran reported peripheral neuropathy symptoms prior to his
diagnosis of diabetes and his blood sugar was controlled through
diet and exercise alone, the examiner opined that it was highly
unlikely that peripheral neuropathy was caused by diabetes.
In November 2006, the Veteran complained of numbness in his hands
to IMA. His motor strength nevertheless was found to be normal.
The Veteran similarly complained of increased pain, stinging,
tingling, weakness, and numbness in his hands in his November
2006 notice of disagreement (NOD). He then stated his belief
that he has peripheral neuropathy of his upper extremities. He
also stated his belief that this disability should be service-
connected because he has service-connection for diabetes and
peripheral neuropathy is a known complication thereof.
Along with his NOD, the Veteran submitted a portion of a
publication entitled Diagnosis and Management of Type 2 Diabetes.
It lists diabetic neuropathy as one long-term complication of
diabetes. It further indicates that such complication is common,
occurring in 60% to 70% of patients with diabetes. Finally, it
notes that tricyclic antidepressants such as amitriptyline are
the most commonly used drugs to treat diabetic neuropathy.
The Veteran also submitted a statement dated in January 2007. He
reiterated that he had been diagnosed with diabetic neuropathy,
bilateral upper extremities, "which is caused from diabetes."
A February 2007 VA treatment record shows that the Veteran
"continues with" peripheral neuropathy. An assessment of
peripheral neuropathy was provided.
In submitted statements dated in March and April 2007, the
Veteran reported increased pain, burning, stinging, and tingling
caused by diabetic neuropathy in his hands. The Veteran also
stated that his hand pain had become so severe that it limits his
activities of daily living.
Neuropathy, diabetic neuropathy, and diabetic neuropathies are
noted in VA treatment records dated in October 2007 and
thereafter. However, these records specifically discuss his
lower extremities and make no mention of the Veteran's upper
extremities. Further, they reflect that the Veteran had 5/5
strength, 2+/4+ deep tendon reflexes, and full sensation to light
touch.
At his December 2007 DRO hearing, the Veteran reiterated his
belief that his diabetes has caused diabetic peripheral
neuropathy. He also testified that he drops things because his
hands go numb.
A VA examiner rendered an opinion regarding the Veteran's claim
in January 2008. He noted that there was no indication in the
Veteran's treatment records of any sensory impairment in his
arms. As such, he concluded that "clinically significant
diabetic neuropathy affecting the upper limbs appears unlikely."
The Veteran was afforded a diabetes examination in June 2008. He
reported numbness and tingling in his fingertips that is so
infrequent it does not bother him. Motor strength was 5/5 and
deep tendon reflexes were 2+ in his upper extremities upon
physical examination. Based on these findings and the October
2006 electrophysiological examination, which was interpreted as
unremarkable with respect to the upper extremities, the examiner
stated that there was no sign of peripheral neuropathy in the
Veteran's upper extremities.
In light of the evidence, the Board finds that entitlement to
presumptive service connection is not warranted for peripheral
neuropathy, bilateral upper extremities as a chronic disease.
There is no evidence that the Veteran manifested peripheral
neuropathy in his upper extremities to a compensable degree
within one year from the date of his separation from service.
Indeed, the record is devoid of treatment records from this time
period.
Entitlement to presumptive service connection also is not
warranted for peripheral neuropathy, bilateral upper extremities
as due to exposure to herbicides. There is no evidence that the
Veteran manifested peripheral neuropathy in his upper extremities
to a degree of 10 percent or more within one year of the last
date on which the Veteran was exposed to the herbicide agent. He
completed his service in the RVN in August 1969. Assuming that
he was exposed to an herbicide agent there and that his last
exposure to such an agent occurred on his last day in the
country, the Veteran must have exhibited acute or subacute
peripheral neuropathy to a degree of 10 percent or more by August
1970. Service treatment records dated through March 1970,
however, make no mention of any peripheral neuropathy in his
upper extremities. Further, no treatment records dated in the
first year after the Veteran's discharge, to include the period
from April to August 1970, are before the Board, as noted above.
Having found that the Veteran is not entitled to presumptive
service connection, to include as due to exposure to herbicides,
the Board turns to consider direct service connection. See
Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case,
entitlement to direct service connection is not warranted for
peripheral neuropathy, bilateral upper extremities. The weight
of the evidence does not show that the Veteran has a current
diagnosis of upper extremity peripheral neuropathy. Treatment
records from IMA do not contain such a diagnosis. No evidence of
a polyneuropathy of the upper extremities was revealed during
physical and electrophysiological examination at the October 2006
VA peripheral neuropathy examination. Further, no sign of upper
extremity peripheral neuropathy was found at the June 2008
diabetes examination.
The Board acknowledges that VA treatment records reference
neuropathy, peripheral neuropathy, diabetic neuropathy, and
diabetic neuropathies. However, all of these treatment records
with the exception of one in February 2007 made these references
in the context of discussing the Veteran's lower extremities, for
which service connection for peripheral neuropathy secondary to
diabetes has been established. There was no discussion of his
upper extremities. The February 2007 treatment record did not
detail whether the peripheral neuropathy was in his upper
extremities, lower extremities, or both. As such, there is no
diagnosis of peripheral neuropathy particular to the Veteran's
upper extremities. This finding is strengthened by the fact that
the VA examiner who rendered his opinion in January 2008 reviewed
the Veteran's entire claims file, to include his VA treatment
records, and found no indication of sensory impairment in his
arms.
The Board also acknowledges the Veteran's complaints of weakness,
numbness, tingling, stinging, burning, and pain in his arms,
hands, and fingers and his assertion that this symptomatology is
peripheral neuropathy of the upper extremities. He is competent
to describe his symptoms because he personally experienced them.
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v.
Nicholson, 21 Vet. App. 303 (2007). However, he is not competent
to conclude that his symptoms constitute upper extremity
peripheral neuropathy. Such a conclusion concerning a complex
disability like peripheral neuropathy requires specialized
training that a lay person like the Veteran lacks. See Espiritu
v. Derwinski, 2 Vet. App. 492 (1992); Layno v. Brown, 6 Vet. App.
465 (1994); see also 38 C.F.R. § 3.159(a)(2). As discussed
above, none of his physicians at IMA or VA and none of the VA
examiners have concluded that he suffers from peripheral
neuropathy specific to his upper extremities.
Even if the Veteran had a current diagnosis of peripheral
neuropathy, bilateral upper extremities, service connection still
would not be warranted. There is no lay or medical evidence that
he incurred or aggravated upper extremity peripheral neuropathy
in service. Service treatment records do not reveal that he
complained of, sought treatment for, or was diagnosed with such a
condition. Indeed, his upper extremities were given a normal
clinical evaluation upon his separation. There also is no lay or
medical evidence associating any current peripheral neuropathy of
the Veteran's upper extremities with his service. He has not
asserted that any such direct association exists or indicated
that he has experienced upper extremity peripheral neuropathy
symptomatology ever since such a condition was noted during
service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir.
2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007);
Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). No
physician, whether private or VA, has so opined. The treatment
records pertaining to his current upper extremity peripheral
neuropathy symptomatology make no mention of his service. These
records indeed reflect that the Veteran first complained of any
such symptom in March 2005. In this regard, the Board notes that
it may consider the passage of a lengthy period of time in which
the Veteran did not complain of the disability at issue when
determining whether or not to grant service connection. See
Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom.
Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The
absence of any evidence of the Veteran's complaint of any upper
extremity peripheral neuropathy symptomatology for approximately
35 years after his separation from service thus is significant
evidence against granting direct service connection.
Finally, the Board finds that entitlement to service connection
is not warranted for peripheral neuropathy, bilateral upper
extremities as secondary to service-connected diabetes. As
discussed above, the weight of the evidence does not show that
the Veteran has a current diagnosis of peripheral neuropathy in
his upper extremities. Even if the Veteran had such a current
diagnosis, the evidence does not show that this condition was
proximately caused or aggravated by his diabetes. He asserts
this to be the case in several lay statements. As support for
his contention, he submitted Diagnosis and Management of Type 2
Diabetes. This medical publication indicates that diabetic
neuropathy is a common complication in patients with diabetes.
However, it is general in nature and does not concern the Veteran
specifically. The medical evidence that does concern the Veteran
specifically is negative with respect to a nexus between any
upper extremity peripheral neuropathy and his diabetes. The VA
examiner who conducted the Veteran's October 2006 peripheral
neuropathy examination opined that it was highly unlikely that
peripheral neuropathy was caused by his diabetes. A VA examiner
also rendered his opinion in January 2008 that "clinically
significant diabetic neuropathy affecting the upper limbs appears
unlikely."
In sum, the preponderance of the evidence is against the
Veteran's entitlement to service connection for peripheral
neuropathy, bilateral upper extremities under all theories of
entitlement. The doctrine of reasonable doubt therefore is not
applicable and service connection is denied.
(CONTINUED ON NEXT PAGE)
ORDER
Service connection for peripheral neuropathy, bilateral upper
extremities is denied.
____________________________________________
MICHAEL MARTIN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs